AA (Iran), R (On the Application of) v Upper Tribunal (IAC) & Anor

Failure to comply with the tracing duty for an unaccompanied asylum-seeking child affects the legal assessment of an asylum or humanitarian-protection claim only where it may have a causative connection with the need for protection. The issue is fact-sensitive. Where the claimant’s account of persecution is rejected and continuing family contact is an unassailable inference, non-compliance does not assist the claim. The court also observed that section 1 of the Children Act does not impose a general requirement for express use of its checklist. R(Tinizaray) v SSHD should not be treated as establishing such a principle.

An Iranian national arrived in the United Kingdom as an unaccompanied minor and claimed asylum. His asylum claim was refused, and the First-tier Tribunal rejected his account of persecution and his assertion that he had lost contact with his family. His later application for further leave on asylum, humanitarian-protection and human-rights grounds was also refused. The First-tier Tribunal dismissed his appeal, and permission to appeal to the Upper Tribunal was refused.

The Upper Tribunal then refused permission to appeal on 7 July 2011. The Administrative Court refused the subsequent judicial-review claim: [2012] EWHC 1784 (Admin). The central questions were whether the Secretary of State’s failure to comply with the tracing duty affected the refusal of permission, and whether the First-tier Tribunal’s Article 8 assessment was unlawful for not expressly applying the section 1 checklist in the Children Act.

1. Appeal dismissed. The decision challenged was the Upper Tribunal’s refusal of permission to appeal. Once permission for judicial review had been granted, the court was determining the substantive judicial-review claim, rather than applying the second-appeals threshold in R (Cart) v Upper Tribunal [2012] 1 AC 663 SC.
2. The tracing duty under Article 19(3) of the Reception Directive (2003/9/EC) and Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 is fact-sensitive in its legal consequences. A claimant may rely on non-compliance where the failure could have a causative link to the evidence or circumstances said to establish a need for protection. The duty does not assist a claimant where the essential asylum account has been rejected and there is no causative link between the breach and the asserted need for protection.
3. Here, two First-tier Tribunal decisions rejected the appellant’s account that his father and uncle were involved in KDPI activities and that he was at risk on return. In that context, the finding that he remained in contact with his family was a permissible and unassailable inference. The failure to trace therefore did not affect the asylum or humanitarian-protection claim.
4. The Article 8 ground was not pursued. The proposed submission that the best-interests assessment was unlawful because the tribunal had not expressly followed the checklist in section 1 of the Children Act was unsupported by any general principle. Following SS (Nigeria) v SSHD [2013] EWCA Civ 550, the court agreed that R(Tinizaray) v SSHD [2011] EWHC 1850 should not be regarded as establishing such a principle, and stated that tribunals should not continue to adopt that approach. The Master of the Rolls and Lady Justice Sharp agreed.

1. Upper Tribunal (Immigration and Asylum Chamber): permission to appeal was refused on 7 July 2011.
2. Administrative Court: the judicial-review claim was refused by Judge Gilbart QC on 19 July 2012: [2012] EWHC 1784 (Admin).
3. Court of Appeal (Civil Division): appeal dismissed.